Wednesday, September 2, 2015

Harley-Davidson,
Inc. (H-D), is an American motorcycle
manufacturer, founded in Milwaukee, Wisconsin in 1903.As one of two major
American motorcycle manufacturers to survive the Great Depression, the company
has survived numerous ownership arrangements, subsidiary arrangements, periods
of poor economic health and product quality, as well as intense global
competition — to be among the largest motorcycle manufacturers and an iconic
brand widely known for its loyal following.

Harley Davidson bike - a photo taken by me at Marina beach !

Valued possessions
are prone to theft. Posing as a great lover of motor sports with a deep
passion for Harley Davidson motorbikes, a man strode into a posh Banjara Hills
showroom on Tuesday and rode away with his 'test drive' bike, reports today’s
Times of India. A showroom staffer who was following him tried to keep up but
eventually gave up as the mint-fresh Rs 6 lakh Harley disappeared into the
horizon.

The
report describes that the 25-year-old man had entered the store around 2.30 pm
and identified himself as a software engineer. "Hi, I would love to go for
a test drive as I am planning to buy one soon," the young professional,
who identified himself as Syed Tahir, had said. After a while, Tahir, wearing a
cream-coloured shirt, tight jeans and a cap, had stopped next to a 'Street 750'
model. "He seemed intelligent and was very suave in his appearance, and
they (showroom staffers) did not think anything was wrong when they agreed to
his request for a test drive," Banjara Hills inspector P Murali Krishna
said.

As
part of the test drive process, showroom officials asked him to show his
driving licence — which he promptly flashed along with a credit card. Tahir
said he would pay the money after the test ride. "They noted down a mobile
phone number given by him, but did not check his address, which he said was in
Jubilee Hills," Krishna told TOI. Tahir also agreed to the test-ride route
— a trip from the showroom to Jubilee Hillscheckpost and back. After starting
the bike, Tahir did not take a U-turn in front of the showroom at Sagar Society
T-junction but sped off straight towards Nagarjuna Circle. "An employee of
the showroom follows a test rider on another bike, but the conman gave him the
slip by going straight," the inspector said. "The employee tried to
follow him, but got stuck in the traffic at the signal on road number 2."

The
showroom employees waited for an hour, hoping Tahir would return with the bike.
After realising they had been duped, the showroom management called the police
and gave them CCTV footage of the offender. Based on a complaint, the police
registered a case under IPC sections 380 (theft in a building) and 420
(cheating). The showroom officials said the stolen bike did not have a GPS
tracker.

Moving
away from this incident, on a similar case, an Official had opined that such
act would not constitute a theft, as the property was knowingly parted with –
and hence could only be treated as ‘breach of trust’ implying that a policy
covering the same would not pay for it under theft !!

Definition
of Breach of Trust is :Abuse of power, or failure (whether or not deliberate,
dishonest, or negligent) to carryout the general and fiduciary duties of a
trustee. Trustees are personally liablefor any loss to the trust caused
directly or indirectly by the breach, and must hand over (to the trust) any
profit made from the breach (whether or not the trust suffered any loss).

Section 406
in The Indian Penal Code deals with its
punishment :406. Punishment for criminal breach of trust.—Whoever commits
criminal breach of trust shall be punished with imprisonment of either
description for a term which may extend to three years, or with fine, or with
both.

A reading of the
relevant section and the explanations thereunder Indian Penal code would offer more clarity.

378.
Theft.—Whoever, intending to take dishonestly any moveable property out of the
possession of any person without that person’s consent, moves that property in
order to such taking, is said to commit theft.

Essential ingredients are : intention to take dishonestly; without
owner’s consent; moving property for taking = theft. The explanations provided
in the Act add more clarity :

Explanation
1.—A thing so long as it is attached to the earth, not being movable property,
is not the subject of theft; but it becomes capable of being the subject of
theft as soon as it is severed from the earth.

Explanation
5.—The consent mentioned in the definition may be express or implied, and may be
given either by the person in possession, or by any person having for that
purpose authority either express or implied. Illustrations

(d) A, being
Z’s servant, and entrusted by Z with the care of Z’s plate, dishonestly runs
away with the plate, without Z’s consent. A has committed theft.

(e) Z, going
on a journey, entrusts his plate to A, the keeper of the warehouse, till Z
shall return. A carries the plate to a goldsmith and sells it. Here the plate
was not in Z’s possession. It could not therefore be taken out of Z’s
possession, and A has not committed theft, though he may have committed
criminal breach of trust.

Section 379
in The Indian Penal Code :379. Punishment for theft.—Whoever commits theft
shall be punished with imprisonment of either description for a term which may
extend to three years, or with fine, or with both.

Section 380
in The Indian Penal Code :380. Theft in dwelling house, etc.—Whoever commits
theft in any building, tent or vessel, which building, tent or vessel is used
as a human dwelling, or used for the custody of property, shall be punished
with imprisonment of either description for a term which may extend to seven
years, and shall also be liable to fine.

Now
you know better on whether the Insurer of the vehicle would be liable to pay for
this loss or not ? – the situation could further change, if the showroom
insurance covered only ‘burglarly’ as a peril and not ‘ theft ’……….. interesting !!!!